Obama Care and the Constitution

[tombogan03884]

http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250548017

Posted by David Kopel:
Is Obamacare Constitutional?
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250548017


   Independence Institute Senior Fellow (and University of Montana
   constitutional law professor) Rob Natelson suggests not, in [1]this
   blog post.
   Natelson puts aside the question of whether it is constitutional under
   Originalism (for which the answer is "obviously not"), and instead
   points to four problems under modern constitutional doctrine: 1. It is
   not based on any enumerated power of Congress, not even on a very
   expansive reading of the power to regulate interstate commerce.
  2. It relies on Excessive Delegation of the type held unconstitutional
   in Schechter Poultry.
   3. It violates Substantive Due Process, and interferes with
   doctor-patient medical decisions to a vastly greater extent than did
   the laws declared unconstitutional in Roe v. Wade.
  4. It violates the Tenth Amendment by commandeering state governments.
   A couple caveats: It's a blog post, not a law review article, so it
   just sketches out the above points briefly. It's obviously written in
   the spirit of starting a public dialogue. In the spirit of
   constructive dialogue, we promise not to say that we "don't want the
   folks who created the mess to do a lot of talking." (By "created the
   mess," I mean the people who created the legislation with little
   apparent consideration for constitutionality, and who appear to have
   operated from the presumption that Congress can exercise powers which
   are not enumerated.)
   . Also, when Rob writes something on a blog, he is not speaking as an
   official representative of the Independence Institute, nor does he
   purport to do so. (The same goes for what I write on VC.) And while
   Rob and I agree on many constitutional issues, we do not necessarily
   agree on all of them; for example, he does not believe that the 14th
   Amendment, properly interpreted, protects unenumerated rights, whereas
   I do.
   I hope to have the chance to interview Rob on an iVoices.org podcast
   in the near future, and will certainly study the Comments to look for
   serious, challenging questions to ask.

References

   1. http://electriccityweblog.com/?p=4765

[Kid Shelleen]

Great and enlightening article. Unfortunately nothing that was presented will prevent the passage of Obamacare.